New York has a law making it illegal to marry couples without a valid license. Two Unitarian Universalist ministers performed marriage ceremonies for 13 same-sex couples in a pasture on March 6. They now face charges because, as Ulster County District Attorney Donald A. Williams carefully pointed out, they had "proclaimed their intent to perform civil marriages under the authority vested in them by New York State law, rather than performing purely religious ceremonies."
"They did not violate the law," declared their lawyer, Robert C. Gottlieb. "Their only intention was to uphold the law, the Constitution and the right to be free from discrimination. The only people who violated the law here are the clerks who refused to issue the licenses."
Gottlieb is not yet making this argument in a federal court, but the public and legal arguments being made in defense of same-sex marriage lay the groundwork for legalizing polygamy.
The first step is to utterly separate the idea of civil marriage from the religious ideas that produced it. Of course, you don't have to be religious to get married. Nonetheless, our basic ideas about marriage are rooted in specific religiously inspired ideas. Not just the idea that it takes a husband and a wife to make a marriage (which is a human universal), but also other ideas, such as: Men have an obligation to be sexually faithful to their wives (not a human universal), and you can't marry two women at the same time. If the first idea is illegitimate because it is rooted in religious ideas, what happens to the other two?
The second step is to say that this new creature, "civil marriage," is an individual right to a set of legal goodies. Marriage is not a social norm, a way of preferring a certain kind of relationship because this relationship is critical to our civilization. Marriage is a benefits-grab, a way of distributing stuff to anyone who wants to claim it. Everyone has the right to have the law recognize their own private vision of marriage, because nothing important hangs on marriage.
From there it is a short hop to polygamy. After all, if Unitarian ministers in New Paltz have a constitutional right to create legal marriages of any kind they choose, then so do Muslim clergy in Brooklyn.
Many advocates of same-sex marriage recognize that it is part of a strategy of deconstructing any social ideal in family or sexual life. David L. Chambers, a distinguished law professor at the University of Michigan, laid out the underlying connection in a law review article: "If the law of marriage can be seen as facilitating the opportunities of two people to live an emotional life that they find satisfying -- rather than as imposing a view of proper relationships -- the law ought to be able to achieve the same for units of more than two."
When the core norm of marriage is under sustained legal attack, the proper response is not to "leave it to the states." As Edwin Meese pointed out in The Wall Street Journal, if marriage really matters, it matters in all 50 states. Some things really are fundamentals of our civilization. We don't permit states to "experiment" with communist forms of government. We don't allow judges to redefine what a corporation is. If marriage really matters, the right response to a sustained legal attack on our marriage norms is to use the constitutional process our forefathers gave to us to reaffirm our social ideal.
In the United Sates of America, marriage means something: the union of husband and wife who can give to their children a mother and a father.